Filed 5/19/15 P. v. Torres CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

HECTOR JAV IER TORRES,
Defendant and Appellant. B252919
(Los Angeles County Super. Ct. No. NA077728)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed with directions.

Jennifer A. Mannix, und er appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Thomas C. Hsieh, Deputy Attorney s General, for Plaintiff and Respondent.

* * * * * *2

After one jury deadlocked
, a second jury convicted d efendant Hector Javier Torres
of two counts of attempted premeditated murder and one count of first degree murder. All of the crimes followed a figh t at a restaurant, and defendant vigorously argued that he
acted in self

- defense

. On appeal, he argues that the court erred in instructing jurors. We find no prejudicial error and affirm the judgment. We remand the case to the superior

court to cor rect the abstract of judgment.
FACTS AND PROCEDURE Early in the morning on March 16, 2008, defendant was at a restaurant in Wilmington with his son and niece. The victims

— Thomas Rodriguez, Ruben S aucedo,
and Victor Saucedo

— also were at the restaurant along wi th their family and friends including Antonio Saucedo

. Victor Saucedo and Antonio Saucedo were cousins
, and
R uben Saucedo was their friend. A bloody fight started about 2 :00 a.m. ; the participants
hit each other with bottles

. D efendant did not fight wit h anyone inside the restaurant

. Victor Saucedo and Rodriguez fought with another party inside the restaurant

. In an effort to stop the fight ing , Juan Caballero, one of the restaurant owner s , forced everyone outside the restaurant. Defend a n t went outside , holding the door open
for the others to exit

. Once outside, Antonio Saucedo punched defendant because he though t defendant was reaching for something

. D efendant fell to the ground

. Rodriguez may have challenged defendant by putting his hands out sugge sting he wanted to fight

. Victor Saucedo may have kicked defendant
, but Victor testified that although he appeared in a videotape to be kicking defendant he believed he was falling. When defendant and the victims were outside the restaurant, d efendant di d not heed Caballero’s request that he stop fighting. Defendant shot Ruben Saucedo first
, then Rodriguez, and then Victor Saucedo. Ruben Saucedo suffered a broken col larbone and a perforated lung. Rodriguez died of a gunshot wound to the chest. Victor Saucedo suffered a gunshot wound in his back, and was paralyzed

. There was no evidence any of the victims, t heir f

amily members, or friends had weapon s

. Defendant did not testify. Dr. John Tr euting, a toxicologist, testified that Rodriguez’s toxicology report at the time of his death showed that he was under the3

influence of alcohol and stimulant s

. Rodriguez’s inhibitions may have been re d uced, he may have been de l usional, and Dr. Tr e u t ing opined Rodriguez would have been agit at ed
and irritated.
Ju rors were instructed on self

- defense
, defense of anothe r , and unreasonable self

defense

. Jurors were also instructed as follows: “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds, for
b elieving and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circums tances, to be necessary to prevent the injury which appears to be imminent. ” A similar instruction was given wi t h respect to defense of another. Jurors were instructed as follows that an assailed person need not retreat: “A person threatened with an att ack that justifies the exercise of the right of self

- defense
need not retreat. In the exercise of his right of self

- defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reaso n a b le person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more e asily have gained safety by flight or b y withdrawing from the scene.” During closing argument defense counsel argued that defend ant was at the restaurant with his son and niece when “those group of individuals engaged in a fight and used bottles, chairs, they hit people in the head. There wa s blood everywhere. ” Counsel
continued: “Those are all the circumstances you have to take into account when you a re thinking about what Mr. T orres was going through, outside, when Antonio took tha t running start and hit him so hard that his face crunched and that he thinks he knocked him out for a minute, and Victor runs b y and kicks him.” Counsel argued that d efendant
was afraid of an imminent attack that would cause him death or great bodily injury.
Defense counse l emphasized that no direct evidence was introduce d to show defendant’s mental state. Counsel argued the jury instruction on circumstantial evidence4

“tells you that if there are two reasonable interpretations, one which points to guilt an d
the other to in nocence, you must

. . . adopt that which points to innocence and reject that interpre tation which points to guilt.” Defendant was convicted of first degree murder and two counts of premeditated attempted murder. Firearm enhancements (§ 12022.53, subds. ( b), (c) & (d)) were found true with respect to all counts , and a great bodily injury enhancement (§ 12022.7, subd. (a) ) was found true with respect to both attempted murders

. Defendant was sentenced to

a to tal term of 100 years to life.
DISCUSSION
For re asons we shall explain, we reject defendant’s arguments that the court prejudicially erred in instructing jur ors. 1. No Error i n Rejecting Defendant’s Requested Special Instruction The court denied defendant’s request to instruct jurors with the followin g special
instruction: “When deciding whether the defendant’s beliefs were reasona bl e, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge w ould have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.

“ The defendant’s b elief that he or someone else was threatened may be reasonable
even if he relied on information that was not true. Howev er, the defendant must actually and reasonably have belie v ed that the information was true.

“ If you find that Victor Saucedo threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the def e ndant’s co nduct and beliefs were reasonable.

“ If you find that the defendant knew that Thomas Rodriguez, Ruben Saucedo, and
V ictor Saucedo had threatened or harmed others in the past, you may consider that information in d eciding whether the defendant’s conduct and beliefs w ere reasonable.5

“ Someone who has been threatened or harmed b y a person in the past is justified in acting more quickly or taking greater self

- defense measures against that person.

“ If you find that the defendant was assaulted by someone else th at he reasonably associated with Thomas Rodriguez, Ru b en Saucedo, and Victor Saucedo, you may consider that assault in deciding whether the defendant was justified in acting in self

defense or defense of another.

“ A defendant is not required to retreat. He is entitled to stand his ground and
defen d himself and, if reasonably necessary, to pursue an assailant until the danger has passed. This is so even if safety could have been achieved by retreating.

“ The People have the b urden of proving beyond a reas onable doubt that the
defendant did not act in lawful self

- def e nse or defense of ano the r. If the People have not met this burden, you must f ind the defendant not guilty.” (Italics added.) Many of the principles in defendant’s proposed instruction were s ubsumed b y other instructions , and defendant does not argue otherwise. Instead he contends that the
italicized portion on antecedent threats should have been given. According to defendant
, the proposed instruction informed jurors that “Antonio, Ruben, Th omas, and Victor’ s prior threat s to or assaults on appellant would justify appellant, when reacting to assault by them to act more quickly.” Prior threats are relevant to interpreting whether a defendant acted in self

- defense

. ( People v. Minifie (1996) 1 3 Cal.4th 1055, 1069.) They may “ill uminate and reflect on the reasonableness of defendant’s perception of both the imminence of danger and the need to resist with the degree of force applied. [Citation.] They may also justify the defendant ‘in acting m ore quickly and taking harsher measures for her own protection

. . . . ’ ” ( People v. Humphrey (1996) 13 Cal.4th 1073, 1094.) For example, a n instruction on antecedent threats was warranted when the victim had threatened the
defendant on numerous occasion s prior to the day the defendant shot the victim. ( People
v. Pena (1984) 151 Cal.App.3d 462, 470, 471

- 475; see also People v. Spencer (199 6) 51 Cal.App.4th 1208, 1220.)6

Here, n o evidence supported the antecedent threat instruction as t here was no
evidenc e of an antecedent threat. Although the victims may have challenged or assaulted defendant immediately prior to the shootings, they did not do so on a prior occasion . The
instruction on self

- defense covered the conduct that occurred immediately prior to the shootings
, and defendant does not show any further instruction was warranted. In

contrast to People v. Moore (1954) 43 Cal.2d 517, 528, in which there was evidence that defendant had received prior threats, here there was no similar evidence.
Defenda nt’s reliance on People v. Mathews (1994) 25 Cal.App.4th 89 is misplaced. In that case the defendant was convicted of exhibiting a firearm in the presence of a peace officer. ( Id . at p. 93.) The court held that the defendant should have been “held to th e standard of a reasonable person with a similar physical disability in deciding whether he reasonably should have known that he was in the pre s ence of a peace officer.” ( Ibid .) The case does not concern antecedent threats and does not support defendant’ s argument that his instruction on antecedent threats was warranted in this

case. The trial court properly concluded that no evidence supported an instruction on
antecedent threats because there was no evidence any victim threatened defendant on a prior o ccasion

. 2. No Prejudicial Error in Instructing Jurors w ith CALJIC No. 2.01 Instead of
CALJIC No. 2.02
CALJIC No. 2.01 and CALJIC No

. 2.02 both concern the sufficiency of
circumstantial evidence. 1 ( People v. Marshall (1996) 13 Cal.4th 799 , 849 .) CALJIC

1 CALJIC No. 2.01 provides: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. “Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establi sh guilt may be found to have been proved7

No. 2.02 is less inclusive and should be given when “the only element of the offense that
rests subs tan tially or entirely on circumstantial evidence is that of specific intent or mental state.” ( People v. Marshall
, at p. 849 .) Defendant argues th at inst ead of instructing jurors with CALJIC No. 2.01, the court should have instructed jurors with
CALJIC No. 2.02. As respondent acknowledges, the court should have instructed using
CALJIC No. 2.02 instead of CALJIC No. 2.01 because the only circumstantial evi dence concerned defendant’s specific intent. The other elements were proven through direct evidence including a videotape from the restaurant. Defendant was not prejudiced by the error. CALJIC No. 2.01 “ ‘does not undermine the instructions on the presu mption of innocence and the stand ard of proof

beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. “Also, if the circumstantial evidence [as to any particular count] permits tw o reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt. “If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” CALJIC No. 2.02 provides: “The [spe cific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s]

____ ,

____ , and ], [or] [the crime [s] of

____ ,

____ ,

____ , which [is a] [are] lesser crime[s]],] [or] [find the allegation to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state ] but (2) cannot be reconciled with any other rational conclusion. “Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other in terpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”8

beyond a reasonable doubt

. . . ’ because other instructions make clear the applicable standard of proof.” ( People v. Lucas (2014) 60 Cal.4th 153, 298 .) CALJIC No. 2.01 does not allow jurors to convict on pro of less than beyond a reasonable doubt. ( People v. Capistrano (2014) 59 Cal.4th 830, 875

- 876.) Jurors were instructed that they could not rely on circumstantial evidence unless it could not be reconciled with any other rational
conclusion and defense cou nsel emphasized this instruction during his closing argument. Use of the more inclusive instruction precludes a finding of prejudicial error. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)
3. Abstract of Judgment Must Be Corrected Respondent correc tly points out that the abstract of judgment must be amended to reflect the following fines pronounced at sentencing: The trial court orally pronounced three $40 court security fees totaling $12 0 (Pen. Code, § 1465.8) and three $30 criminal
conviction ass essments totaling $90 (Gov. Code
, § 70373)

. The abstract of judgment
must be corrected to include all fees and assessments

. DISPOSITION The judgment of conviction is affirmed. The superior court is directed to amend the abstract of judgment to include a ll of the court security fees and criminal conviction assessments. The court shall forward a certified copy of the abstract to the Department of
C orrections and Rehabilitation.

FLIER, J.
WE CONCUR:

RUBIN, Acting P. J. GRIMES, J.